Los Angeles daily herald., 1887-10-15
only as the basis for fuller and more com

plete agreement IleTedIttT W Dt hlhuC.
But assuming that this written offer was
intended to be the final agreement 1t is evl-
dent that on the evidence before tne court,
the Court cannot determine all the ques-
tions which may arise as 10 the mortgaee,
the terms thereof, the terms and conditions
upon which portions of the land mortgageu
should be released and the questions which
would arise as to the right OF the trustees to
pasture the cattle on the lands ana the COM
pensation to be paid therefor.
These matters, and perhaps others. were
by the written offer expressly left to future
negotiations between the trustees and the
party who at the sale might be the purchaser.
AS TO the mortgage and the questions ariS-
ing thereon it might be said there is to be no
mortgage to the trustees. Be that as 1t may
the other objections suggested remain with
out answer.
THE POWER TO SELL.
Since the will of James Irvine, deceased,
gives to the Trustees the power to sell at
either public or private sale, and with or
without notice, it Is immaterial to decide
whether this was a public or private sale.
1t was, however, argued by the attorney
for the plaintiff that it was public sale, and
that Mr.. Bicknell, (who, If the sale was a
public auction, must have been the auc-
change the written or printed terms
of sale and conduct the sale under the agree
ment as to the limit of thirty minutes, or
any other agreement different from the
Civil Code, which reads as follows, when
a sale by auction is made upon written or
printed conditions such conditions cannot
be modified by any oral declaIatlon OF the
except SO far as they are for his
own benefit"
The application of this section to the
adoption of the hslf-hour limit is, to say the
least, extremely questionable, since Mr..
Biekne0 was not instructed in its adoption;
but it derived all of its efficacy, If any, from
, b, al and taplt.
part of all the parties concerned.
1t was, however, argued on behalf OF the
Smith that since no public notice
was given and no bids were cried 1t was not
\ public auction, but Il private sale.
There are different kinds OF auction sales,
First: The ordinary auction, when, after
public notice, an auctioneer, in pursuance OF
the special terms of the sale or in the usual
offers and sells property for sale to
the highest bidder.
Second: Roups, which in Scotland are
auctions like the ordinary, except that dis
putes arising are referred to an umpire
called the judge of roup, and that generally
be received is published, beforehand.
Third Dutch auctions, where the pro-
perty is put up at a high price, ana II no
one takes it at that price less sum is named
and SO on until some one closes with the
offer.
Our system of land tax sales partakes
of the nature of Dutch auction;
the successful bidder being the one who Will
pay the tax and take the least portion OF the
land.
This same system of tax sales prevails in
some of the counties of Ireland.
l read also of markets overt mock aue-
tons, &C., but in none of these various
clas ses do find parallel in all respects to
this sale.
1t was not in all respects, either, public
auction or private sale, but partook OF
some of the elements of each. those of the
public auction, in my opinion, predominant
ing. 1t was sale SUI generts.
THE LAW.
It must be borne in mind that two of the
five trustees were not present at the time OF
the sale, and that no mention is made OF
the half-hour limit in the written offer for
sale; also that the signatures OF the TWO
absent trustees were affixed to the written
offer by two of their co-trustees.
An.attempt was made on the trial 10 prove
a ratification by the absent trustees of the
execution in their behalf of the written
offer.
Assuming that this was successful as to
everything contained III the writing, the at
tempt was clearly abortion as to any con-
sent to the time being limited to half an
hour.
No evidence was offered to show such con-
sent or ratitication on the part of l. K. Davis
and Mrs Irvine on the witness stand, in en-
was based on any limitation of time.
The general rule of law. is that, where
there are several trustees, a majority may
act in the execution of a public trust, but IN
the execution of private trust all OF the
trustees must unite in order to bind the
trust property or estate.
See PERU on Trusts, Section lie, ct. seq.
Section 226S of the Civil Code of this State
provides that: where there are sever l CO.
trustees all must unite in al act to bind the
trust property, unless the declaration OF
trust otherwise provides
The provisions of the will of the deceased
James Irvine, have already been stated, ana
instead of providing that majority OF the
trustees or any other number less than all
Except in the event of death or absence
from the State) might act in the execution
OF the trust, the testatOr or trustor has ap-
parently ca industrtG omitted so TO provide,
and has required that there should be always
five trustees to execute the trusts declared
by him.
r5On behalf of the defendant Smith it is con-
tended that the adoption of the half horr
limit was mere incident to or regulau0
OF the sale; bnt as the result of this sale has
fully proven, it must oe conceded that it
was most important regulation, having the
effect of causing the property to be sold for
less than it would otherwise have brought
This effect is sufficiently shown by the
plaintiffs bid of 81 1885 10000. 90, by the al
legation i'll the answer of Smith that he
made no other bid after the plaintitfs bid OF
S ,3S5 ,000.00 because of the time having
expired, and, as before remarked, by the
evidence on the trial
How much more would have been real
lied for the property /, of course, am un-
able to say; but it is evident that neither OF
the two bidders had reached the highest
price which he would have been willing to
give for the property.
Mr.. Perry, in his work on Trusts (Section
7S6 and notes., citing the authorities in
support thereof, says: Trustees may impose
any reasonable conditions of sale, but they
must not dampen the sale by clogsing it
with unnecessary conditions and restric-
tiOns. If they do any act or make any con-
ditions which prevent competition and
cause sacrifice of the property the sale will
be set aside.
In Batement on auctions, (p. Sc and notes.,
it is said The use of depreciatory cendi-
tions Ii. {. conditions calculated to damp the
sale) by persons in fiduciary capacity, may
not only involve the vendors in personal
liability to their ccstuis que trust but may
also constitute an objection to the title"
1T is strong argument against trustees
sale that higher price might have been OBJ
tanned by different mode of conducting the
sale"
g If the trustees have done anything tend
ing to prevent competition or to cause a
sacrifice of the property their sale may be
set aside at the instance OF any beneficiary
injured thereby"
The same rule applies to sales made by
trustees under deed of trust, by mortgages
selling under power of sale contained in a
mortgage, by sheriffs or by any othey per-
sons entrusted by law with the power to sell
property for the payment of debts.
This being the law rs to conditions or
regulations imposed by the trustees them
selves, with how much greater force should
1t apply to the regulation in this case limit
ing the bids to half an hour?
So far as the validity of the sale is con-
cerned it really makes no difference whether
it was adopted by the trustees or not. If
they did adopt it their action was in viola
tion of their duty as trustees and illegal !;
and if they did not adopt it was their plain
duty to have disregarded it and continued
the offer until the highest price obtainable
had been secured.
1t is also well settled law that trustee
cannot delegate his trust.
"Delegalas potestas non potest delegar;"
they, therefore, could not have authorized
or ratified any action of the bidders in max
ng gsuch regulation.
But on the other hand, it was their duty to
see that no regulations other than those of
their own making, were allowed to control
or affect the sale.
And if, after the sale has been once con-
and become executed, 1t may, be-
cause of its illegality, be set aside at the suit
of the beneficiary or. csstui UUe frasf IL eds